Supplementary Agenda of City Planning Committee Meeting

Item No. 11

Supplementary Agenda (Open Portion)

City Planning Committee Meeting

Page 9

16/3/2020

Memorandum: City Planning Committee

2 / 19 - 21 Castray Esplanade, Battery Point Adjacent Road Reserve - Outdoor Dining Furniture - PLN-20-4

This memo provides further information in relation to PLN-20-4, a development application for outdoor dining on the footpath adjacent to 2 / 19-21 Castray Esplanade, Battery Point.

The following documents are attached:

1. PLN-20-4 – 2 _ 19-21 Castray Esplanade Battery Point – Planning Committee Report and Attachments

2. email from Alex Lazarou, the applicant, to Council officers dated 6 March; and

3. a response to Mr Lazarou’s email:

(a) a memo by Nick Booth, Council’s Cultural Heritage Officer ; and

(b) a copy of Mr Booth’s full report on this proposal.

Process

The following points respond to the suggestion that the applicant has been disadvantaged by the processes which the Council officers have followed.

· The applicant was first offered an extension of time on 3 March. The applicant chose not to do so. As a consequence, a special Committee meeting was arranged for 10 March due to the expiry of the statutory time frame that day.

· The email from Mr Lazarou to Mr Ikin (Council’s Senior Statutory Planner) was received on 6 March at 3.24pm (Friday). Mr Ikin, who does not work on Fridays, responded to the email at the first opportunity at 8.44am on 10 March (Tuesday, after the long weekend).

· Despite efforts by Mr Ikin during the day on 10 March, the applicant chose not to request an extension until well through the special Committee meeting.

· Prior to the special meeting, the applicant did not request to make a deputation at the special Committee meeting. If he had done so, the representors would have been informed of this may have also requested to do so.

· It is not the usual process to circulate emails from applicants to the Committee. The email of 6 March raised certain points criticising Mr Booth. The applicant could have raised these points in an open forum at the special Committee meeting. Mr Booth was present and was able to respond. Instead, the applicant requested a written response to those issues. The report containing the recommendation for refusal is contained in the agenda for the special Committee meeting on 10 March.

· This memo will be published on the Council’s website as part of the agenda for the meeting on 16 March, and will also be provided directly to the applicant. The applicant and representors have been informed that the Committee will consider the application on 16 March and that they have the opportunity to attend the meeting to make a deputation.

Recommendation

The application is recommended for refusal. Prior to finalising the report to the Committee, very careful consideration was given to the Scheme provisions and discussions were had with Mr Booth to ensure that his opinion was fully reasoned and considered.

In particular, consideration was given to the decision of the Full Court of the Supreme Court regarding the proposed development at 1 Montpelier Retreat.^{^[1]} That decision clearly states that the requirements of the Activity Area (clause 16) are a basis for refusal which is separate from the other parts of the Scheme. On that basis, the references by Mr Lazarou to other parts of the Scheme (included that they are supported by other Council officers) do not overcome the requirement to also satisfy the heritage provisions in clause 16.

Further, consideration was given to the decision of the Resource Management and Planning Appeals Tribunal in relation to this property. The owners of the property applied to place solar panels on the roof, which Mr Booth opposed on heritage grounds. The application was refused by the Council and the Tribunal upheld that decision, accepting Mr Booth’s opinion in relation to heritage characteristic of the property and the extent to which they are protected by the Scheme.

The following is an extract from that decision. The criterion which is being referred to (clause 22.4.5, criterion 1) is that a proposal must “complement and contribute” to the cultural significance of the relevant building. For the current proposal, the test which must be met is most likely a higher test, that the proposal must “contribute to, and enhance” the cultural heritage of the building.

The Tribunal stated:^{^[2]}

Clause 22.4.5 Criterion 1, places a very high evidentiary burden upon an applicant for development within the area. It can be inferred, reasonably, that the authors of the Scheme intended that there should be little or no development within the Cove except in circumstances where a contribution to its intrinsic cultural heritage values could be delivered. Examples of where a development might achieve that objective include appropriate conservation/restoration works, the removal of prior work that has an adverse impact on a building’s significance, or perhaps, work intended to prolong the life of a building which would otherwise become derelict if not so improved. The obligation upon the Tribunal is to do the best it can to give meaning to the Scheme in a way which is consistent with the language used and the objectives within which those words appear. But an application for works to a place of heritage significance is very severely constrained by the words in this provision. Typically, works which appropriately conserve or restore a heritage place will more easily and comfortably sit within the scope of the discretion conferred by those words; anything else is likely not to comply.

The concluding remark is a very strong statement about the type of proposal would be acceptable.

Heritage expertise

Mr Booth responds to the issues raised by Mr Lazarou in the attached memo. In summary:

· there was no heritage expert report provided with the DA;

· the only supporting document provided:

o was only an extract – despite a full copy being requested;

o was prepared in 1996 and made no reference to the current DA;

o relates to a different property; and

o no information about the author or who commissioned it was provided.

For those reasons, the document had no influence on Mr Booth’s opinion.

Mr Booth is the only heritage expert who has provided a professional opinion in relation to the proposal.

Conflict

Mr Lazarou has implied that Mr Booth’s opinion is compromised or influenced by both his membership of a group known as “Better Hobart” and by his “personal association” with the representors.

Mr Booth addresses his link with Better Hobart in his memo. It had no bearing on his opinion in relation to this DA.

Mr Booth has confirmed today that he has no relationship with any of the representors. The list of representors opposing this DA includes Mr Gandy and a number of other co-owners of the property. In the Tribunal decision referred to above, Mr Booth opposed the application by Mr Gandy (which was made on behalf of the building’s co-owners) for solar panels to be placed on top of this property. This demonstrates that Mr Booth is not influenced by the representors and is simply forming a professional opinion in relation to this property.

REcommendation

Pursuant to the Sullivans Cove Planning Scheme 1997, the Council refuse the application for outdoor dining furniture at 2/1921 Castray Esplanade and the adjacent road reserve Battery Point for the following reasons:

1. The proposal does not meet the objective or the performance criterion with respect to clause 16.2(a) of the Sullivans Cove Planning Scheme 1997 because it does not respect the cultural heritage and character of the Activity Area by not demonstrably contributing to, and enhancing the cultural heritage, built form and spatial characteristics of the activity area.

2. The proposal does not meet the objective or the performance criterion with respect to clause 16.2(b) of the Sullivans Cove Planning Scheme 1997 because it does not conserve and enhance the amenity, character and cultural heritage values of the Cove’s roads, because it will detract from the Cove’s heritage value.

As signatory to this report, I certify that, pursuant to Section 55(1) of the Local Government Act 1993, I hold no interest, as referred to in Section 49 of the Local Government Act 1993, in matters contained in this report.